The court gave me my Christmas present early this year by only relisting one new case: City of Boise, Idaho v. Martin, 19-247. In an opinion that began with the obvious quote from Anatole France, the U.S. Court of Appeals for the 9th Circuit held that the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when they have no home or other shelter to go to. When the 9th Circuit denied rehearing en banc, it drew two heated dissents from six judges of that court, along with a concurrence by the author of the original opinion, Judge Marsha Berzon. She criticized what she called “this circuit’s innovation in en banc procedure — ubiquitous dissents in the denial of rehearing en banc,” which she said “often engage in a distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority — often a decisive majority — … perceive no error.” Accompanied by what may be a record number of amicus briefs at the cert stage (20), the city of Boise seeks review. The difference in how the parties present the issue is striking. Here is how Boise frames the issue:

Does the enforcement of generally applicable laws regulating public camping and sleeping constitute “cruel and unusual punishment” prohibited by the Eighth Amendment of the Constitution?

And here is how respondent Robert Martin frames the issue:

Whether a homeless individual may be charged with a crime for sleeping outside when there is no shelter available to him or her.

The court is obviously taking a close look at this one.

The last conference of 2019 is this Friday. We’ll get orders Monday. The court is unlikely to relist cases until Monday, January 6, ahead of the January 10 conference. But at some point next week I may engage in some ill-informed speculation about what those relists will be. Good news for people with weak stomachs: I probably won’t have time to engage in one of the literary flights of fancy I’ve indulged in during years past.

New Relists

City of Boise, Idaho v. Martin, 19-247Issue: Whether the enforcement of generally applicable laws regulating public camping and sleeping constitutes “cruel and unusual punishment” prohibited by the Eighth Amendment of the Constitution.
(relisted after the December 6 conference)

Returning Relists

Terry v. Oklahoma, 18-8801Issue: Whether the boundaries established in the Treaty of February 23, 1867, for the eight tribes within the former Indian Territory of northeastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C § 1151(a).
(relisted after the October 1, October 11, October 18, November 1, November 8, November 15, November 22 and December 6 conferences)

McGirt v. Oklahoma, 18-9526Issue: Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
(relisted after the October 1, October 11, October 18, November 1, November 8, November 15, November 22 and December 6 conferences)

Andrus v. Texas, 18-9674Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation.
(rescheduled before the November 1 and November 8 conferences; relisted after the November 15, November 22 and December 6 conferences)

Reed v. Texas, 19-411Issues: (1) How a court should consider under the Brady materiality standard the impact of a key trial witness’s assertion of the privilege against self-incrimination and refusal to testify when confronted with the suppressed exculpatory evidence; (2) when expert testimony relied on by the state in a criminal trial is later shown to be scientifically invalid, what is the appropriate standard to assess whether the state’s use of the testimony violated due process; and (3) whether the conviction or execution of a person who is actually innocent of a crime violates the U. S. Constitution.
(relisted after the November 22 and December 6 conferences)

Smyth v. Conservation Commission of Falmouth, 19-223Issues: (1) Whether the loss of all developmental use of property and a 91.5 percent decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central Transportation Co. v. New York City; (2) whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction; and (3) whether the Supreme Court should excise the “character” factor from Penn Central regulatory takings analysis.
(relisted after the November 22 and December 6 conferences)

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.